What do they want out of the mediation?
The resolution of a dispute does not just occur on the day of the mediation. Each participant to mediation needs to prepare their own strategy for negotiation in the settlement. Based on my experience as a mediator, these are a collection of tasks each participant needs to complete and to discuss with their council and the mediator before the mediation.
These tasks and the discussion with the mediator are confidential. They are confidential under both Attorney Client privilege and under mediation confidential provisions in court rules, statutes, and standards.
What do they want?
You know that you have interests that need to be satisfied when you attend the mediation, the other side also has interests. What are those interests?
They have communicated their interests to you through a variety of means. What do you think those interests are? They can be money, time, minimize their risks, fairness, maintain a working relationship, etc. List and rank them.
It is important to realize that your legal opponents do want something out of the dispute and that they are willing to spend time, money and legal talent in order to get it. This does not mean that they will succeed. It just means that there are things you can use as bargaining chips.
It is entirely possible that you might have some of the same interests. This is also an opportunity to create a solution outside of the box. Realizing this possibility will help reach a settlement easier at least on certain issues.
Review the list you have created with your attorney and be prepared to discuss it in confidence with your mediator.
About the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator. He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment. He is also a Mediator and Arbitrator for FINRA.
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